Preservation Law Notes: Using Wilderness Walmart to Understand 'Standing'

Posted on:May 7th, 2010byNational Trust for Historic Preservation

Written by Julia Miller

The Ellwood Manor (Photo: Rob Shenk)

Why is it that someone can file a lawsuit yet never get his or her day in court? Doesn’t that seem unfair?

Consider a decision that came down just last week from the Orange County, Virginia Circuit Court regarding the National Trust for Historic Preservation’s eligibility to participate in a lawsuit we filed last September along with Friends of the Wilderness Battlefield and several local residents. The lawsuit seeks to overturn Orange County’s approval of a 240,000-square-foot Walmart superstore on the Wilderness Battlefield and adjacent to the Fredericksburg and Spotsylvania National Military Park.

In his opinion for the court, Judge Daniel R. Bouton ruled that the National Trust lacked “standing” to sue and thus granted the county’s request to remove us from the case. Even though the National Trust is chartered by Congress to protect America's historic resources (see 16 U.S.C. §§ 461, 468) and we have been a major player in efforts to protect Wilderness Battlefield over the past two years, the judge declined to confer standing because we lack a “direct interest” in the case. At the same time, he ruled that all of the other plaintiffs were “aggrieved” and thus had standing.

Essentially, Judge Bouton reasoned that if the National Trust had standing in this case, it would have standing in any case “where it unilaterally decides that it must participate . . . to preserve or protect some historic or public interest in federal property.” Yet, decisions on whether to confer standing rest with the court.

So what is standing and why is it important? Standing is a short-hand term for the right to be heard in court. Courts are not obligated to hear a case just because someone files a lawsuit. The person or entity seeking relief must have a sufficient stake in the outcome of the case to invoke a court’s jurisdiction. While the standing requirement may sometimes be an unwelcome and formidable barrier to preservation advocates seeking to enforce legal requirements or challenge unlawful actions on behalf of the public at large, it can also prove helpful — it precludes others from meddling in controversies in which they have only a generalized interest.

The applicable legal standard for conferring standing to a plaintiff depends upon where the lawsuit is filed. As a general matter, federal standing requirements may differ from state requirements, and important variations may exist from one state to the next. Thus, while standing may be conferred in one state, it may be denied under a similar set of facts in a different state. In addition, specific standing requirements may be delineated by statute.

In Virginia, standing does not come easily. Under the principles established by the state supreme court in Virginia Beach Beautification Commission v. Board of Zoning Appeals, 231 Va. 415 (1986), a plaintiff is not aggrieved, and thus lacks standing, unless it owns property within “close proximity” to the property that is the subject of the lawsuit or has a “direct, immediate, pecuniary, and substantial interest” in the action being challenged.

Thus, in finding that the National Trust lacked a “direct interest” in the case, Judge Bouton meant that, under Virginia Beach, the National Trust did not have a sufficient stake in the outcome because we do not own property in the immediate area and lack a pecuniary interest in the case. In comparison, the court explained that Friends of the Wilderness Battlefield had standing because of its contractual obligation to restore, maintain, and interpret the nearby historic Ellwood Manor, while the six individual plaintiffs had standing because they all own property near the proposed Walmart site and some may even be required to share in the costs of a dam upgrade if the project is built.

So what’s the bottom line? Even though the National Trust will have to sit this one out, advocates for the preservation of Wilderness Battlefield and the adjacent park will get their day in court. The case will go to trial. Indeed, notwithstanding Judge Bouton’s ruling against the National Trust, the court’s decision is bittersweet given the intense level of frustration experienced by those who worked so hard and spoke out so ardently against the project, yet to no avail. Over the objections of the National Park Service Director Jonathan Jarvis, local residents, national and local preservation organizations, and a who’s who list of historians, journalists, actors, and politicians, the county’s board of supervisors voted to approve the project.

The plaintiffs were represented by Robert Rosenbaum of the Washington law firm Arnold & Porter.

Julia Miller serves as special counsel for the National Trust for Historic Preservation. Along with her colleagues in the National Trust’s Legal Department, she will be blogging about all things legal each Friday in our new series, Preservation Law Notes.

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